Claas Friedrich Germelmann
Moderne Rechtssetzungsformen im Umweltvölkerrecht – Entwicklung und Perspektiven sekundärrechtlicher Regelungsmechanismen
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In modern international law, the tension between the demands of national sovereignty on the one hand and the wish to effectively pursue goals of community interest on the other hand is a constant feature. It becomes most evident in the field of international rulemaking. Since the traditional way of concluding international treaties respects the principle of sovereign equality of the states, but often falls short of the substantive requirements of fast-evolving areas like e.g.international environmental law, the international community has found alternative ways of decision-making, namely by international organisations. While in European Union law, secondary legislation is a particularly prominent feature of supranational law and integration, rudiments of comparable features can also be detected in general international law. Bearing in mind the fundamental differences between the two areas of law, it is submitted that even in general international law, a sort of secondary legislation has developed over the last decades. It is in particular in the field of international environmental law that the member states to the large environmental conventions have agreed to establish mechanisms of secondary rulemaking by convention bodies. In various treaties, the conferences of the parties (COPs) have been entrusted with the task to develop and implement the treaty system in a relatively independent manner in relation to the member states. Focusing in particular on the conventions governing the law to combat climate change, which despite all political setbacks is still one of the most important areas of international environmental law and which is under a constant challenge to adapt to new scientific evidence, it can be observed that rulemaking by the COPs relates to different relevant aspects like the preparation of treaty amendments, the amendment of annexes to the conventions, the specification of conventional duties, the implementation of procedural and technical rules, etc. The instruments of climate protection under the Kyoto Protocol and their extension of application by the Doha amendment are a particularly instructive example. The same applies to the means of ensuring compliance and enforcement under the international environmental conventions. Finally, the ability of international organisations and conferences of the parties to regulate by setting up soft law rules has also to be taken into account. Even though, after all, secondary rulemaking in general international law is still largely dependent on the willingness of the member states to accept, in a concrete area of law, legal rules that are enacted by treaty bodies in a procedure different from traditional treaty making, it seems to be a rather underestimated feature that has the potential to reasonably complete and sometimes even amend primary rules that are contained in the large and prominent international conventions. International secondary law in environmental matters will, however, need both a political and a doctrinal backing in order to fulfill these tasks.